Supreme Court Will Decide If You Actually Own What You've Bought

from the yes,-it's-come-to-this dept

Mon, Oct 29th 2012 9:22am — Mike Masnick

We've written about the Wiley v. Kirtsaeng case many times already, but it's an important one to follow. While everything else in DC closed down to bunker down for Hurricane Sandy, the Supreme Court Justices decided to soldier on and actually hear the case today. Joe Mullin has written up the most thorough and detailed examination of the case, including the fact that Kirsaeng is merely the first, and most well-known case brought by copyright holders trying to stop them from reselling legally purchased works made outside the US. Copyright holders love the fact that Kirtsaeng is the central case here, because he earned a lot of money -- so they can argue that he's somehow "unfairly" profiting from international arbitrage. But, as Mullin notes, lawsuits have been brought against many others who were selling a lot less.

Copyright holders keep trying to downplay the "horror story" scenarios that many of us worried about a ruling in favor of Wiley could lead to. However, if the Supreme Court says that it's copyright infringement to sell a copyright-covered work made outside the US, but legally imported in, you can bet that all sorts of companies will seek to take advantage of this fact. We've already talked about the predecessor case here, Omega v. Costco, in which merely putting a copyright image that no one would see on the back of a watch could open up the ability to block resale of physical products. While Omega eventually got smacked down in the lower court, that was for copyright misuse -- the first sale issue stuck. So, all companies need to do is slightly modify the way they use copyright, and they can ban your ability to resell products.

If you believe in basic property rights, this should freak you out. It's kind of funny to see the MPAA and RIAA -- who like to pretend they're in favor of property rights -- right upfront in arguing against it here.

While it's pretty rare to see "activism" around a Supreme Court case, the folks at Demand Progress have put together a campaign called You've Been Owned to speak out about this. While that won't impact the Supreme Court, they're right that this issue is going to matter in Congress eventually. Whichever side loses this case is going to run to Congress with pre-written legislation to "fix" the Court's ruling. If you believe that you should own what you bought -- even if it's made in a foreign country -- then this is a case to pay attention to, and to be ready to speak out about when the inevitable legislative "fix" is introduced.

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Filed Under: copyright, first sale, kirtsaeng, ownership, property rights, supreme court

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Ninja (profile), 29 Oct 2012 @ 9:05am

While I'm wary of legislative intervention I think it should be made clear either within the laws of via a clear indication from the Supreme Court that what you buy is yours to do whatever you want. While I'm not versed in US laws I'm pretty SURE that there are laws to prevent imports of large quantities of whatever products via civil transportation (ie: passenger luggage). Furthermore, the US (and pretty much everywhere else) needs to state clearly that digital goods are YOURS once you bought them and clearly outlaw practices like Amazon removing previously bought ebooks from Kindle. It's about time those morons are punished for abusing the consumer.
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Mesonoxian Eve (profile), 29 Oct 2012 @ 9:43am

You mean the same SCOTUS which allows patents on living organisms and blocked Costco from legally reselling purchases abroad?

Yep. We're fucked.
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out_of_the_blue, 29 Oct 2012 @ 9:43am

It's the content, not the physical media, Mike.
Copyright is the right to control copies. This one may be muddied up, but if they're importing the same content as is under current copyright, then you should expect to "lose" this one too.
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Chosen Reject (profile), 29 Oct 2012 @ 9:57am

Re: It's the content, not the physical media, Mike.
Copyright is not the right to control copies, it is the removal of others rights to make copies in certain circumstances (there's still fair use). Kirtsaeng isn't making copies. He's just moving the legally made copies from one place to another and doing so for payment. Amazon does this, Walmart does this, Best Buy does this.
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Rikuo (profile), 29 Oct 2012 @ 10:01am

Re: It's the content, not the physical media, Mike.
Again, you haven't_got_a_clue.
Then again, you admitted it in the "Copyright is not a human right" article, when you admitted you don't argue for copyright, but merely to antagonize us.
Anyway, I'm gonna correct your stupidity anyway.

If I'm in the US and go on to say Amazon and buy a book from a US seller, I've bought it and I own it. I can resell it if I choose. Copyright law can't stop me there.
However, you support the view that a buyer should lose his ownership rights to the book if he buys the book from abroad. Do you not realise the implications of this?
People won't want to buy a book they are told is illegal for them to resell.

Besides, as others have pointed out, the publisher wants to have their cake and eat it too. They argue that a book published abroad is not "lawfully made under copyright law" yet argue that they still deserve copyright protection. Like with the licence v sale debate with digital music, you can't pick and choose. Either its made under copyright law and thus the buyer can resell his books, or its not made under copyright law and the publisher cannot receive copyright protections.
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Anonymous Coward, 29 Oct 2012 @ 10:05am

Just think, nearly all our goods come from China now as they are our manufacturers. So if this passes as not owning something made outside the US, they've just pissed on what remains of the economy like they've already done to the US election cycle with Citizens United.

We've reached the point that copyright needs to be abolished if this happens. It's no longer a sane reaction to the real world.
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Mike Masnick (profile), 29 Oct 2012 @ 10:07am

Re:
You mean the same SCOTUS which allows patents on living organisms and blocked Costco from legally reselling purchases abroad?

Um. You're confused. Both of the rulings you're talking about are appeals court rulings -- NOT SCOTUS. SCOTUS split on Costco so no ruling there. It's the appeals court ruling that stands in that circuit. And the gene patents case was sent back to CAFC after SCOTUS ruled (smartly) against medical diagnostics, but did not rule on the Myriad (genes) case yet.
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The eejit (profile), 29 Oct 2012 @ 10:13am

Re:
See, you know you're in trouble when Tea Party rhetoric is the right way forward in an aspect fo governance.
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Scott, 29 Oct 2012 @ 10:15am

Re: It's the content, not the physical media, Mike.
Are you for real,OOTB? You post your shit and when someone calls you upon it you run away like a coward,yet what did I expect from some peon like you.
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Milton Freewater, 29 Oct 2012 @ 10:22am

In fairness to the MPAA and RIAA
"It's kind of funny to see the MPAA and RIAA -- who like to pretend they're in favor of property rights -- right upfront in arguing against it here."

In fairness to the MPAA and RIAA, for the past several years they have stood consistently and clearly against existing basic property rights. Do you have any examples of them pretending otherwise? I haven't seen it.
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Anonymous Coward, 29 Oct 2012 @ 10:24am

What will be this ruling's applicability?
Were SCOTUS to decide against Kirtsaeng, would the court's ruling apply to products first sold in the United States but manufactured abroad?
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James Burkhardt (profile), 29 Oct 2012 @ 10:25am

Re: Re: It's the content, not the physical media, Mike.
Besides, as others have pointed out, the publisher wants to have their cake and eat it too. They argue that a book published abroad is not "lawfully made under copyright law" yet argue that they still deserve copyright protection. Like with the licence v sale debate with digital music, you can't pick and choose. Either its made under copyright law and thus the buyer can resell his books, or its not made under copyright law and the publisher cannot receive copyright protections.

I am against this interpretation, but for a specific reason. If its not made under copyright law, its an illegal copy here in the US, and therefore you, the consumer, has no rights either. You don't have the first sale doctrine to stand on.

Then again, you are looking at it wrong. These copies ARE produced under copyright. But they use region-based pricing so that although the book is worth $300 in the US, its only worth $100 in India (as an ass-pull example).

The "have their cake and eat it too" argument is that either these copies are lawful under International copyright law, and should continue to be sold in India with valid first sale rights, or they are not, in which case they need to sue the publisher in India (themselves) for undervaluing the product.

But this is all window dressing for the real war. Region-based pricing. Its the reason we pay twice as much as India for consumer goods, and Australia pays twice as much as us. And in a global economy, it can only be supported by using regional legal bodies to enforce the pricing scheme.
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Anonymous Coward, 29 Oct 2012 @ 10:26am

Re: It's the content, not the physical media, Mike.
The case is about the distinction between making copies, and controlling copies once sold. At the moment copyright only cover the first activity, and the copyright owners are trying to make it cover the second. If the maximalists win this one, then almost anything made abroad could fall under their control for resale.
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Scott, 29 Oct 2012 @ 10:35am

Re: Re: It's the content, not the physical media, Mike.
That is why I think maximalists don't care about copyright itself and just want to control others.
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Rekrul, 29 Oct 2012 @ 10:41am

Don't worry, I'm sure the SCOTUS will bend over for Wiley and end up screwing the American public, like many of their recent rulings have.

They've clearly shown that they don't give any consideration to the average person any more.

Frankly, if products made outside the US aren't "legally" made under the copyright act, I don't understand why they should have any copyright protection at all.
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Anonymous Coward, 29 Oct 2012 @ 10:44am

Yeah its pretty ridiculous they can say you "Own" something but then you don't "own" it. Also if I'm just licensing all my stuff then companies are ripping me off with their pricing.
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Anonymous Coward, 29 Oct 2012 @ 10:50am

And they wonder why people pirate
Abolishing the First-Sale Doctrine simply gives people another reason to justify piracy. The movie/album/game is no longer printed? Both the studio and publisher folded in the 1990s? The current copyright holder (if we even know who it is) won't re-release the work? Might as well get it for free online since it's the only option left, and I don't even "own" it anyway.
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Anonymous Coward, 29 Oct 2012 @ 10:57am

Re: In fairness to the MPAA and RIAA
Did you even read the OP?
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The eejit (profile), 29 Oct 2012 @ 10:59am

Re: What will be this ruling's applicability?
I don't think so, personally, but you can be DAMN SURE that the IP industry won't agree with that.
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Anonymous Coward, 29 Oct 2012 @ 11:00am

If I were a gambler, I wouldn't take bets against scotus screwing the public. That's a foregone conclusion.
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Dysmey, 29 Oct 2012 @ 11:00am

Piles of Unsellables
Nobody seems to the environmental consequences of a SCOTUS ruling in favor of Wiley. A favorable ruling for Wiley may well be the start of a pollution nightmare: When consumers realize they cannot sell most of their stuff because it was made, in whole or in part, overseas, they will just throw that stuff away. Some of the discarded stuff may be recycled (although even recycling may not survive a favorable ruling), most will just accumulate in landfills, junkyards, and along the sides of roads and creeks.
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Scott, 29 Oct 2012 @ 11:07am

Re:
Who knows really,maybe a couple of justices may have heart
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That One Guy (profile), 29 Oct 2012 @ 11:22am

However, if the Supreme Court says that it's copyright infringement to sell a copyright-covered work made outside the US, but legally imported in, you can bet that all sorts of companies will seek to take advantage of this fact.

Oh it wouldn't be hard to imagine the chain of events from such a ruling at all...

1. Economy takes a massive hit, as every company that can shuts down local production of their products, and moves all production overseas.

2. All companies that were able to take advantage of step 1 now only sell products that are manufactured overseas, allowing them to use the law to shut down or massively damage the used goods market. Economy takes another massive hit.

3. Lack of competition in the form of the used goods market allows companies to raise prices as much as they care to, reducing by a good portion the number of sales, as more and more people simply can't afford the products anymore. Economy takes another hit.

4a. Companies see a reduction of sales, and do what they've always done, and whine to the government that 'It's those criminals hurting our sales again, that's the only possible reason our profits could be decreasing!'

4b. Politicians, who these days seem to have the cognitive functions, pattern recognition skills, and ability to understand any info that doesn't come with a donation attached to it as a week dead slug, pass even more idiotic laws to try and 'fix' the problem, inevitably making things even worse.

(And because I just couldn't resist)
*Skipping ahead a few steps...*

23. Cthulhu arrives, takes one look at the mess the US is in, and determines there's not really anything he could do to make things any more chaotic. Proceeds to go back to sleep for a couple more eons.
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Anonymous Coward, 29 Oct 2012 @ 11:26am

Kirsaeng reimported over $1 million in textbooks for a considerable personal profit. Thereby competing with the publisher who discounted the texts to reflect the economic reality if third world markets. If Kirsaeng prevails it will end the practice of discounting books in developing economies, rather than being forced to compete against themselves. In the end the loser will be the education system in developing nations due to greedy profiteers like Kirsaeng.
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MrWilson, 29 Oct 2012 @ 11:36am

Re: What will be this ruling's applicability?
The key issue is the copyright holder's "intent," which for all intents and purposes is pure bullshit here. It doesn't matter if you made a product for a particular market. Once it's in the wild, it should be able to be sold by the person who owns it. This is basically the publisher trying to take away the power of the free market from controlling it's prices.
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Anonymous Coward, 29 Oct 2012 @ 11:37am

Re: Re: Re: It's the content, not the physical media, Mike.
"If its not made under copyright law, its an illegal copy here in the US, and therefore you, the consumer, has no rights either."

Copyright law is all that prevents me, the consumer, from exercising any of the rights reserved for copyright holders. How, then, can a work not made under copyright law be one which I'm not allowed to copy? The only reason I don't have the right to make copies is that copyright law prevents me from doing so.
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That Anonymous Coward (profile), 29 Oct 2012 @ 11:49am

Re:
[citation needed]
practice of discounting books.
So your premise is that Wiley is discounting books so deeply that they are selling at a loss?

Or are they priced at the best price they can hope to get in that market?
Does this mean they are inflating the prices charged in the US and other markets?
If they can sell these discounted texts and still make a profit, one has to wonder if their pricing elsewhere is just due to their absolute control of the market and IP laws keeping others from covering the same topics.
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Ed C., 29 Oct 2012 @ 12:02pm

Re: Re: Re: It's the content, not the physical media, Mike.
Copyright includes more than just copy rights. The maximalist had made their stance clear a long time ago. The problem is that, if they can't contort the actual law further in their favor, they'll try to get the courts to contort the interpretation of the law. Of course, they then use these rulings as "proof" that the law needs to be contorted again.
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Anonymous Coward, 29 Oct 2012 @ 12:04pm

Re: Piles of Unsellables
What this dispose of stuff without paying the copyright owner, that can't be right.
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Anonymous Coward, 29 Oct 2012 @ 12:04pm

Re: Re:
Market pricing exists everywhere. A gallon of milk or gas will have significant price differences in markets 50 miles apart. Does that mean they are be inflated in one market? Do they still make a profit. I assume yes is the answer to both. I don't see how IP law prevents an author from publishing a competing text in a third world country. The likely reason is that these books require a deep, technical understanding that can't be replicated in developing countries. Publishers will look at the extent that gray market books erode their most lucrative markets and decide whether publishing in third world countries at slim margins make sense. I'd guess no and that Kirsaeng's personal greed will have damaging effects in developing countries.
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The Real Michael, 29 Oct 2012 @ 12:07pm

This is just the latest example of the copyright maximalists & Washington looking to step on our rights, to extend their control above and beyond what's reasonable.

It seems as though Washington's sole purpose is to corrupt and destroy this country at its very marrow. Seriously, what do these people do for our benefit? When do they actually "defend freedom" like they swore an oath to do?
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Edward Teach, 29 Oct 2012 @ 12:07pm

Re: Re:
Aye mate, some of the ill-named "Justices" have hearts: tiny, black, shriveled hearts, like wee raisins.
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Ed C, 29 Oct 2012 @ 12:19pm

Re:
Or they could just stop printing exact copies of the text. For instance, merely changing the questions at the end of each section would differentiate the versions of most textbooks enough to make the practice useless. That's of course assuming they have a mental capacity greater than a lazy five year old and don't just go whining to Uncle Sam to make the boogiemen go away. Since that is what they tend to do, I don't see them growing up any time soon.
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Ed C., 29 Oct 2012 @ 12:23pm

Re:
Freedom is just like everything else, only for those who can afford to buy it. This is a capitalist nation after all.
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James Burkhardt (profile), 29 Oct 2012 @ 12:33pm

Re: Re: Re: Re: It's the content, not the physical media, Mike.
Because by the Bern convention, The india copy would have been illegal initially.

To clarify my statement, it should read "If its not made legally under copyright law." You are setting up your own Have your cake argument as well. You claim that because "its 'not illegal' for me to make copies in country X, I can make said copies and sell them to Americans and get around copyright", while agreeing with an article that says "it shouldn't matter where the copy was produced". My argument is designed to agree with the theory that in a global economy, the laws regarding ownership and first sale should not change.

I would argue that if the copies being sold in this case were produced/sold unauthorized (namely, the copyright holder is not producing/selling them), then they are not legal to sell in the US, because the initial production/sale was in violation of the Berne Convention. However, Whether or not production and/or sale occurs in a country that is a signer of the Bern Convention, if those copies were authorized, then the 'rights holder' loses his ability to control distribution beyond the first sale, by the Bern convention.
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James Burkhardt (profile), 29 Oct 2012 @ 12:39pm

Re: Re: Re: Re: It's the content, not the physical media, Mike.
That's not to say I wholeheartedly agree with the Bern convention and the current copyright status quo (I don't), but I am attempting to place my argument on firm footing. The original argument had a footing that required the reciever to agree that copyright changed depending on the location of first sale, which is the same arguement the 'rights holders' are relying on.

A key point I forgot to explictly include: "a work not made under copyright law be one which I'm not allowed to copy" is a misinterpretation of my argument. Its a work, produced under copyright, copied 'outside' of copyright. That's what we are talking about here.
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Rikuo (profile), 29 Oct 2012 @ 12:39pm

Re: Re:
Team America said it best: "Freedom isn't free; It costs a hefty fucking fee..."
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btr1701, 29 Oct 2012 @ 12:43pm

Re: It's the content, not the physical media, Mike.
> Copyright is the right to control copies.

Bullshit. If I go to a store and buy a book, *I* control it. I own it. I can do whatever I want with it. I can read it, rip it up, burn it, give it away, WHATEVER I WANT.

The publisher/author no longer controls or owns that copy.

That is what this case is about.
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James Burkhardt (profile), 29 Oct 2012 @ 12:50pm

Re: What will be this ruling's applicability?
It could. A sale to a third party distributor (or shell-party) 'in China' could mean that all further sales in America are now subject to this ruling.
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James Burkhardt (profile), 29 Oct 2012 @ 1:17pm

Re:
Imported, not reimported, in all likelyhood. Aside from that, the linked Ars Technica article above clearly shows that the entirety of the UK is included in those 'Third World' Countries (I check UK textbook listings myself).

As for Milk and Gas? Other market forces are at work. Factor one is the fact that milk in a California store can not, by any means, be a physical substitute for milk in a Florida store. Same for gas stations that are widely disbursed. More generally, the same can be said for many goods with floating price points over the country. Hell prices for some goods change depending on the store or part of town you are in. But for consumer goods where time and location stop being concerns, the supply and demand concerns change. Price points do not fluctuate much if at all. Barnes and Noble in New York sells my favorite trade paperbacks for the same cost as the Barnes and Noble in Belton, MS. Because that Belton copy can be a real substitute for the New York copy. The same for Electronics, Video Games, music, movies (DVDs, theaters are subject to time and location constraints) Despite a widely varying COL over this country, most consumer goods do not vary much, and that in the fault of the Federal government preventing tarrifs on interstate goods and more recently the internet allowing better price checking.

The fact is, we now know textbooks have some of the highest markup over Cost of Production as any good. And even in non-innovative industries (say, low-level accounting), new textbook versions keep being released to justify the need for both high prices (Kepp adding more fixed costs) and the depression of secondary markets (changes to review questions invalidate the use of older versions when teachers update).
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Ed C., 29 Oct 2012 @ 1:23pm

Re: Re: Re:
That sort of depends upon the context. Our completely ridiculous military spending aside, national defense isn't free.
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Anonymous Coward, 29 Oct 2012 @ 1:33pm

May I congratulate the community on effectively putting a sock in the troll's mouth?

Well done.
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Anonymous Coward, 29 Oct 2012 @ 1:34pm

Re: Re: Re:
Arbitrage is also legal, you can buy in one market and sell in another.
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Beech, 29 Oct 2012 @ 1:58pm

Re: Re: Re: Re: Re: It's the content, not the physical media, Mike.
But, this isn't a case about MAKING copies. The holder of the copyright makes copies, as is their right. I merely purchase a copy, then take it somewhere else, then sell it. All those things are my right. If I buy a book, copyright doesnt stop me from carrying it around. If I want to sell my book I shouldn't be stopped just because I happen to be in a different physical location than I was when I purchased it.
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James Burkhardt (profile), 29 Oct 2012 @ 2:09pm

Re: Re: Re: Re: Re: Re: It's the content, not the physical media, Mike.
I Fully agree. I merely disagreed with the legal reasoning used by the AC who I originally responded to.
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Anonymous Coward, 29 Oct 2012 @ 2:26pm

Re: Re:
Your quaint economic theories aside, you ignore the practical implications. If I sell 10,000 medical textbooks in the US for $200 each and 500 in third world markets for $50 each I am not going to allow a profiteer like Kirsaeng to undercut me in my primary market and erode my sales. My response will be to raise my third world price to a level where it is no longer attractive for people like Kirsaeng to use my own product to undercut me. The net effect is that the third world price will go up and likely negatively affect medical education in those markets. If that is ok with you, I think you should look at it again. We are not talking about someone who buys a novel at the airport in Bangkok and then sells it on EBay when he gets home. We're talking about a guy who sold over a million dollars in a commercial enterprise.
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The eejit (profile), 29 Oct 2012 @ 2:30pm

Re: Re:
But then we need Earth, Fire, Wind and Water. And then we'll have the full set of judges!
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Anonymous Coward, 29 Oct 2012 @ 2:31pm

Transcript posted
http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-697.pdf
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The eejit (profile), 29 Oct 2012 @ 2:36pm

Re: Re: Re:
And yet, these same companies claim billions in tax rebates on a yearly basis and often declare multi-billion-dollar profits...and yet they STILL whine about people doing things that are pretty much legal.

Funny how those many billions of tax dollars are funnelled through similar loopholes as Kirtsaeng used, but nothing. Zip, Nada, Zilch and Bupkis called. They want their standards back.
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Anonymous Coward, 29 Oct 2012 @ 2:40pm

Citizens don't violate treaties
I would argue that if the copies being sold in this case were produced/sold unauthorized (namely, the copyright holder is not producing/selling them), then they are not legal to sell in the US, because the initial production/sale was in violation of the Berne Convention.
Citizens should not be under any obligation to comply with the Berne treaty. If their activities comply with their country's laws then that should be sufficient. If a nation's laws fail to address the obligations demanded by its treaties then either the treaties or that nation's laws need to be amended to address the issue -- citizens should not be accountable for engaging in legal activities regardless if those activities should cause a breach of treaty obligations. The legality of a citizen's actions is stipulated by law, not by treaties.
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Anonymous Coward, 29 Oct 2012 @ 2:43pm

Whatever the so-called supreme court says, screw them. They can suck it.
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Anonymous Coward, 29 Oct 2012 @ 2:45pm

I don't suppose you have an actual citation regarding you allegations about text book publishers? And what loopholes are you talking about or is this just faith-based indignation?
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JWW (profile), 29 Oct 2012 @ 3:01pm

Re:
Or maybe....

The ridiculous prices that textbook manufacturers charge here will actually have to come down.
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gorehound (profile), 29 Oct 2012 @ 3:03pm

This is exactly what I intend on doing in regards to this News.
Should SCOTUS decide that Used Sales is not cool and we do not own what we buy then this will happen:
I will never buy another book, film, or music again for the rest of my life.
I will use the Library at least while we still have those.
I will just use P2P and VPN, ETC to download illegally stuff as there is no point in me spending money on something I do not own.
I will hope to see Millions of Normal Americans get more angry at MAFIAA, ETC.

Not owning what we buy means why bother buying anything ? No way I will.
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Anonymous Coward, 29 Oct 2012 @ 3:06pm

I'm now hoping for an abysmal SC decision -- one that guts the first sale doctrine or gives copyright holders complete control over importations, or is similarly stupid.

Because people will not stand for this copyright crap forever, and I've come to believe that the only way to get a meaningful reform is for copyright problems to become so bad, for so many, with such obvious stupidity, that radical change becomes possible.

(Don't extend this way of thinking to other areas.)
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The eejit (profile), 29 Oct 2012 @ 3:06pm

Re: Transcript posted
Well, that was interesting reading indeed.

Basically, Wiley's representatives are arguing that First Sale DOES NOT APPLY to Kirtsaeng because of a modifier on the phrase "Lawfully made" from 1976.
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Anonymous Coward, 29 Oct 2012 @ 3:15pm

Re: Re: Re:
The response could also be to lower the price in your primary market to prevent the undercutting. Then the secondary market wouldn't suffer and you'd gain a larger market share in your primary market as some would bypass the used market and buy the much more reasonably priced primary products.

As a business in the United States, you are not afforded a magic wand to make everything work the way you want. Sometimes a competitor comes in and does things better so you need to adapt to remain competitive.
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BillPrice, 29 Oct 2012 @ 3:18pm

Re: Citizens can violate treaties
US Constitution:

Article VI...
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

So tell us how "the supreme law of the land" does not apply to mere mortal citizens.
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James Burkhardt (profile), 29 Oct 2012 @ 3:22pm

Re: Citizens don't violate treaties
The Bern Convention is the legal stick you wave to argue that in all signatory nations, a big companies copyright is valid, and any sales are subject to certain understandings, such as the RIGHT OF FIRST SALE. So in many countries, such as England, First Sale Doctrines should already be in place (in contrast to Costco vs. Omega). This leaves countries whose copyright standards are significantly different then those presented in the Bern Convention

Now, you say that "The legality of a citizen's actions is stipulated by law, not by treaties." What law applies in this case? The country of sale? My argument is that if a "rights holder" releases in a country (willingly) that does not hold to the Bern Convention he, as the AC suggests, waives his rights to Bern-Convention-based international copyright protections. However if some pirate releases his work in a country without said protections, he shouldn't lose those protections when those works return to the US. That is the distiction between the argument AC posted and the arguement I posted. If its an authorized sale, its legally yours, if the sale is unauthorized, you shouldn't be making money on those illegal copies.
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Josh in CharlotteNC (profile), 29 Oct 2012 @ 4:10pm

Re:
Wow, this will be a fun response to write.

If Kirsaeng prevails it will end the practice of discounting books in developing economies, rather than being forced to compete against themselves.

If Kirtsaeng prevails, importers will be able to purchase a publisher's product, ship it somewhere, and sell it. If publishers are unable to compete against their own product, it's not the fault of someone arbitraging international markets.

If Kirtsaeng doesn't prevail, and publishers shut out imports while continuing to ramp up their prices, they will only drive more people to piracy and free or open alternatives.

Frankly, it'd be more fun for me if the publishers "win" this case. When/if first sale rights go down, my hostility towards imaginary (intellectual) property laws will turn into actively encouraging breaking those laws at every opportunity as the only sane course of action.

In the end the loser will be the education system in developing nations due to greedy profiteers like Kirsaeng.

If the publishers lose the case and "retaliate" by jacking prices up in other countries, once again, all they are doing is driving more people towards piracy and free or open alternatives. This is a battle they can not win. They can not fight the market forces against them forever - and the longer they fight, the harder they'll fall at the end.

It's amusing to see them try, though.
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Anonymous Coward, 29 Oct 2012 @ 4:37pm

Re: Re:
I humbly beg to differ. Medical texts and the like are not the same as mass market music, movies and books. The instance of piracy (despite what publishers claim) is much lower. In this instance we will see those publishers abandon the low margin markets rather than allow the high margin markets to be cannibalized by their own product. Perhaps piracy will increase but there's risk to students bringing pdf copies of books to their medical classes in lieu of the assigned text. I doubt a huge spike in infringement necessarily follows, particularly as Kirsaeng charged a fairly high amount for the texts he sold in the US.
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That Anonymous Coward (profile), 29 Oct 2012 @ 4:43pm

Re: Re: Re:
Also read as they have a virtual monopoly on what they produce, charge prices well in excess of the costs, make minor alterations to destroy the resale market for the texts books to push out another copy with 4 changes.

They have no competition and no controls over what they do. You can't very well vote with your wallet when the text is "required" by the school even if you only use 5 pages out of it in the end.

I guess their greed will have damaging effects on the American economy and education system, when it is very clear they can create and sell the texts well below what they charge here. They have control over the market, agreements to be picked with schools, all at the expense of people trying to better themselves through education.

Your argument seems to be Kirsaeng is a horrible person for showing the world they are ripping Americans off. Think about it, he purchased, imported, sold all of these books and managed with all of those additional costs to sell it for less and still make a killing.

This case is not just about someone importing some books, this case is about when you buy something is it yours. Do we have to give even more rights and control over to corporations for things we purchase? And why is it when all of these rights and controls they refuse to replace these items. They pretend they are still their property, it seems that they should be forced to maintain it for the owner for a lifetime.
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That Anonymous Coward (profile), 29 Oct 2012 @ 4:46pm

Re: Re: Re:
but obviously was charging less than what the publishers were charging.
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Anonymous Coward, 29 Oct 2012 @ 5:11pm

Re: Re: Re: Re:
As an IP-dependent business in the United States, you are afforded a magic wand to make everything work the way you want. Sometimes a competitor comes in and does things better so you have the courts declare their competition illegal.

FTFY
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Anonymous Coward, 29 Oct 2012 @ 5:22pm

Re: Re: Re: Re:
I don't entirely disagree. The text publishers do enjoy a monopoly on "assigned" texts. High end medical/scientific texts are expensive to produce due to the high skill level of the authors and worldwide reputation of American medical books. Probably beyond the expertise found in most developing regions.

But I don't think for a moment Kirsaeng was making a statement. He was simply exploiting a loophole for his own personal financial gain. Whatever you think of the law doesn't change what will happen. If Kirsaeng wins, the publisher will simply raise the foreign price so as not to have to compete against its own product. Those developing nations educational systems will suffer as a result. All because of Kirsaeng's profiteering.
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abc gum, 29 Oct 2012 @ 5:28pm

Re: Re: Citizens can violate treaties
It says treaties, not collusion.
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Anonymous Coward, 29 Oct 2012 @ 5:28pm

Re: Re: Re: Re:
In the instant case of these texts, that is the matter being decided by the Supreme Court. Your declaration is premature here. I hope the Court rules for Wiley, because it will seriously harm high level education in developing foreign nations.
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abc gum, 29 Oct 2012 @ 5:31pm

Re: In fairness to the MPAA and RIAA
MPAA and RIAA, for the past several years they have stood consistently and clearly against existing basic property rights of others

ftfy
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Anonymous Coward, 29 Oct 2012 @ 5:36pm

Re: Re: Re: Re:
There is little if any competition in the world of high level scientific texts. And because certain books are assigned, there's a de facto monopoly. The used book market is accounted for in pricing (and often killed off by published an updated edition) so I simply see no incentive to lower prices in your largest and highest priced market.

Finally, who is this nameless competitor? It will almost certainly be American or American controlled as the US has sets the standard for high end medical/scientific texts. This is NOT a market that lends itself to price competition like Grade A wheat.
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Anonymous Coward, 29 Oct 2012 @ 5:37pm

Re: Re: Re: Re:
Yes, that's my understanding.
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abc gum, 29 Oct 2012 @ 5:42pm

Re:
2a) Massive increase in the black market provides limited relief to the 98%.
2b) Special police force established to bust little old ladies holding garage sales.
4c) Golden Dawn type neo fascists gain political influence
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Anonymous Coward, 29 Oct 2012 @ 6:00pm

Re: Transcript posted
JUSTICE BREYER: Well, the word has
grounding. It is Coke upon Littleton, 1628, where it
says that if a man be possessed of a chattel and give or
sell his whole interest upon a condition, that condition
is no good. And Coke says, and that's how it should be.
And now that's picked up in Bobbs-Merrill;
it's picked up in Dr. Miles. It's been the law.
Now if, in fact, there are two ways of
interpreting the statute, and one is consistent with
that basic principle of commercial law, and the other
produces some of the complexities that you have just
mentioned, isn't it better to go with the common law and
simply reaffirm a principle that's been in the
commercial law almost forever?

And, as usual, Justice Breyer is a goddamn hero.
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Anonymous Coward, 29 Oct 2012 @ 6:30pm

Supreme law of the law
Based on the legislative and judicial history, I would deem the meaning of that clause to be the Federal government proclaiming supremacy of its laws and treaties within the U.S. legal system over the laws and judiciaries of the individual states. This view is entirely consistent with that of the U.S. Senate ("The 'supremacy clause' is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.").
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Anonymous Coward, 29 Oct 2012 @ 6:36pm

Re: Re: Citizens can violate treaties
Well, goodness, we can't go against the Almighty Consitooshun, can we?
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cpt kangarooski, 29 Oct 2012 @ 6:37pm

Re: Re: Citizens can violate treaties
But check out 17 USC 104(c) which renders the Berne Convention toothless in the US. The Berne Convention itself indicates that it is not a self-executing treaty, that is, not something which is a binding law itself, but which merely obligates the states that are party to it to enact domestic laws which comply with the requirements of the treaty. Art. VI is irrelevant here -- as the courts have pointed out in the past when people tried to rely on Berne.

tl;dr: Berne, according to itself, Congress, and the courts, is not the law of the land.
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Roland, 29 Oct 2012 @ 7:12pm

Re: Re: Re: It's the content, not the physical media, Mike.
"If its not made under copyright law, its an illegal copy here in the US" Citation needed. If it's purchased in another country and brought to the US, that doesn't make it illegal. The US Govt recently seems to take the view that its laws apply everywhere in the world. That's just bogus.
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varagix, 29 Oct 2012 @ 8:27pm

Re:
How many steps until insane cultists summon Yog-Sothoth to destroy the world? That's what I want to know.
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Anonymous Coward, 29 Oct 2012 @ 9:01pm

Re: Re: Re: Re: Re:
It won't hurt undergraduate and even masters-level eduction in the semi-developed world (especially not in the STEM fields which are most important for industrial competition), because there are plenty of profs in the those countries who could write decent textbooks, even if the English isn't great. Not only that, but writing and publishing there allows a decent income at lower prices, so US publishers would risk being undercut at home by foreign textbooks.

That's part of the reason they bother with the overseas markets: it helps to suppress the local industry and prevent competition.
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Nora, 29 Oct 2012 @ 9:34pm

..|..
I'll give you my copy when you pry (or take) it from my cold, dead hands.
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techflaws (profile), 29 Oct 2012 @ 11:22pm

Re: It's the content, not the physical media, Mike.
Even if (and that's a big if) I take your bullshit for granted, it still doesn't make ANY sense to deny first sale rights just because the product was bought outside the US.
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Anonymous Coward, 30 Oct 2012 @ 12:45am

Re: Re: Citizens don't violate treaties
I think you ask an interesting question about what law applies in this case, but my response would be to ask how the U.S. court system can be tasked with adjudicating based upon anything but U.S. law?

The books in this case were not illegally produced copies; they were copies whose production was made with the full authorization of the copyright holders, purchased on the open market in full compliance with the laws (of the nation in which they were sold), and legally imported into the United States. Given those circumstances, how could a U.S. court apply the copyright laws of this other nation to the case at hand?

Notwithstanding attempts at harmonization through the Berne Convention and other treaties, copyright law varies sharply from nation to nation. Many nations do not have Fair Use exceptions similar to those of the U.S., but then they have greatly diminished penalties for similar activities they might actually deem infringing -- or they might not even deem such "Fair Usage" as infringing for other reasons (some nations do not consider personal, non-commercial copying to ever be infringing). Would the plaintiffs in this case have any claim whatsoever if the nation where these books were purchased recognized a doctrine similar to the U.S.'s First Sale doctrine?

Even if you were to consider it reasonable for U.S. courts to be deciding liability based on the copyright laws of another nation (something I myself could not imagine), what about differences in legal systems between the world's various nations? Are U.S. courts to follow the civil law procedures of Germany or France when the books are imported from that country? The religious law procedures Saudi Arabia or Egypt when that is the country of origin? The hybrid legal procedures of Canada or Israel?

I don't see how U.S. courts can decide based on anything but applicable U.S. law -- a task in itself hard enough. U.S. citizens deserve to be tried by U.S. courts based on U.S. law under the U.S. legal system. Anything less would be not only unjust, but untenable.
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Niall (profile), 30 Oct 2012 @ 5:38am

Re: Re: Re: Re: Re:
So making lots of money is only bad when it's not the gatekeepers? Would you be crying so much if it were just Wiley making loads of money in both local and foreign markets?

This is capitalism at its finest. See an opportunity, take advantage. If you can buy something elsewhere cheaper and still make money bringing it home and selling it cheaper than the local companies, then they are inefficient or gouging, and deserve to lose out.

Something people haven't thought about is secondary First sale situations. What happens if you find two copies of a US book in a London flea market - one is the US edition, one is the English. Both are 'legal' under UK law. You buy both and bring them home to the US. Are either of them 'breaking the law'? If they are, WTF?
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Niall (profile), 30 Oct 2012 @ 5:43am

Re: Re: Re: Re:
That's the whole point, it's completely ridiculous. Most other countries manage without the insane % of GDP you spend. No-one is saying national defence should be free, or even cheap, but it really doesn't need to be higher than the GDP of most nations on the planet, including a number of developed ones!

Besides we're also not talking about national defence. We're talking about the 'rich' being able to buy the laws that suit them. Hardly 'laissez-faire' capitalism! Why, it's almost 'communist'! :)
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Anonymous Coward, 30 Oct 2012 @ 8:03am

Re: Re: Re: Re: Re: Re:
The problem stems from the commercialization of this loophole. People keep trying to distort the facts of the case by throwing out examples of a single book or magazine. What is at issue is that the defendant imported over $1 million of text books from cheaper foreign markets and sold them in competition against Wiley and other US publishers undercutting them in the domestic market. This probably wouldn't ever have been an issue if the activity was that so often used in the examples of a book here and there. But when one greedy individual starts selling millions of dollars worth it becomes a big problem and no matter what happens, will not end well for higher education in developing nations.
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